Recording

Agenda

1. Agenda review

2. Report back from CCWG meeting on 7 April

3. Working through our draft Comment Report

We need general comments and specific comments on the overall approach, and on specific items of disagreement, improvement, or just questions, so we can update and then circulate an updated version for us to look at on the next call.

To be most economical with time, it would be good not to have specific drafting comments dealt with verbally on the call - these would be most helpful as comments bubbles or tracked changes in Word, or just in text in emails responding to specific text from the paper.

This will be the biggest item on our call.

It's already apparent that another layer of detail will probably be required.

4. Discussion (incl with the legal advisors) on how to work out our mechanism

There are a decent list now of possible mechanisms developed by us - membership/delegates, a group inside ICANN under the bylaws, SO/AC processes - to which our legal advisors have offered additional suggestions e.g. the very large super-board.

We need to work out how to make a call on this.

My suggestion as rapporteur is that we try to focus on one or two options - the permanent CCWG/Community Council model, or the superboard model that Adler have discussed - and ask the legal advisors which of those models can deliver what we need, or whether they recommend a different mechanism instead (and if so why).

As prep I will update the table we began to discuss in Istanbul that sets out the key features of the different mechanisms, and circulate it later tonight.

5. Agree agenda for 10 & 13 April calls

Current suggestions for 10 April:

- next version of our comment report

- agree what parts can be sent to CCWG as early notice for the 14 April CCWG call

- focus on decision weights and thresholds for our powers and mechanisms (who has the power)

Current suggestions for 13 April:

- resolution on a mechanism to recommend to the CCWG

- final review of comments report before sending complete input to CCWG

6. Any Other Business

Notes

These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.

1 ..Agenda review: new items for the call

Stress test call: general community detail, to formally consider advice of a SO/AC. Will be added to the agenda as an additional discussion between items 3 and 4.

3. Working through our draft Comment Report

Progress

Work items for Apr 6 completed and AoC intro the bylaws also done. Little ahead of schedule.

Aim for draft text on the mechanisms, and need discussion with legal advisors to prepare this. No topic about other AoC matters coming into the bylaws.

There is no topic in WP1 work about other AoC matters coming into the bylaws. Bringing AoC's into the bylaws, the 4 reviews from the affirmation have been WP1's focus. Affirmation paragraphs 3, 4, 7, and 8 and there are some commitments which also need to be considered. Some of these are reflected in the core values and mission of WP2, but some commitments of the affirmation have not made it through WP2. Use the table to indicate if the commitment is being addressed or not. For example para 8.

Each commitment of the AoC needs to be checked that they are making their way into the bylaws in some form.

Given the importance of the AoC, then should look at how each item it being addressed, by WP1 or WP2, and if at all.

Q. In the AoC one side is USG and other is ICANN. If transferred to the bylaws, who are the two parties, who committed to what and to whom?

Response: Legal advice suggests that if no longer two parties, the commitments can be in the bylaws as obligations for the Board to uphold.

And if the powers being suggested by WP1 are accepted then the Board would remain committed to those commitments.

Not for the CCWG to cancel the AoC, but right for the group to be incorporating the commitments. Check list a good thing.

(legal) A number of things being discussed with the legal group are enforcement mechanisms for various rights. Several mechanics talk about creating members, and if done then any of these commitments in the bylaws can be enforced by the members. Tricky to work out the member mechanism, but can be done

Action: Mathew to lead the team and produce a mapping table, Avri and Fiona volunteering. target Friday or Monday (13)

Discussion document: CCWG-ACCT Working Party 1: Community Empowerment

After the call the paper will be opened as a google doc to allow direct editing.

Either gives clarity and detail and further understanding for members of WP1. What if members have a comment on substance, what is the moment process now?

Response: raise on the call or comments in the document. Text might not reflect agreement. Text in bold highlints issues what have not been agreed (this will be changed to txt inside square [ ... ] brackets. These are issues that should discussed by the group, and raised wth co-chairs.

Addition: on removal of individual board members, At Large needs to be included in that ability.

Directed vote - the model considered in Istanbul was the community council model, and if that is not adopted it will have consequences for voting.

The community council has not been agreed as the mechanism to represent the community, other still under consideration.

Are we talking about reconsideration or veto. Sending something back is difference, and this is shown by a different balance between section titles and the body text.

Individual board member removal, the imbalance between removing a SO/AC selected Director and a NomCom appointee. Seems under CA law that having people who appointed a director remove a director is not hard. But the power to remove NomCom appointees not as simple.

Stress Test team assessed if tests relying on a power of "community veto",which is an element of a number of tests, was necessary. Found that the absence of a community veto would not cause any stress test to fail.

The "community veto" was intended to apply to a narrow range of issues; strategic plan, budget, bylaws changes. The powers the CCWG is recommending deal with all those that were proposed for the community veto.

(legal) scope of community power over the board. The current organization of ICANN may accomplish WP1's goals, but some of the proposed new mechanisms may disrupt this. The board does have certain fiduciary duties defined by statute. It will be possible to give the community the ability to name those board members who should act in accordance with the bylaws, and remove those members by some means. Can also set up a review mechanisms for fundamental bylaws. But reviewing budget and strategic

plan, must be highly specific or my run afoul of the Board's fiduciary responsibility.

Holly: "the boards duties to the corporation should be aligned to the communities interests through a well drafted corporate purpose in the articles.

The headings might be changed to say "force reconsideration of..." to reflect the need to provide some alternative to what has been prevented by the veto.

In the proposal document, if there's not yet consensus on a point, should we present more than one option, or consider an alternative option? And suggest text for or against particular propositions? If options are offered, then the pros and cons of each should possible. And can get guidance on this from the whole CCWG.

4. Discussion (incl with the legal advisors) on how to work out our mechanism

Holly Gregory: outline covering legal concerns by the end of the week.

How is the community organized: as designator or membership, etc. Primary mechanisms to hold accountability is through the selection of directors, removal of a director or the whole board. The power to approve and disapprove the bylaws including fundamental bylaws also possible. As is the AoC into the bylaws.

It seems the community feels directors do not always represent the community's interest, as seems to be the case, it can be useful to have the "corporate purpose" set out in the bylaws, this needs to be fulfilled and is another accountability mechanism for the arsenal.

WP1 has worked on some mechanisms, if some of those models allow us the wield powers , we should hear about these.

WP1, statutory delegates/designators. Least disruptive. Rights could be given to those designated. Next level is to create a membership. The community council might be shaped like members or designators, and CCWG also shaped as designators, The supervisory board is more complex and moving away from that.

To refine and revise the designators would be least disruptive and easiest, but a narrower scope available to designators vs members.

Focus on the power WP1 wants to give the community, response will be if legal or not, and then how best to organize those powers (member or designator) and how to decide who will be the representatives on those bodies.

Powers: enumerated in the comment document section 6.5. (1) would there be other powers, unlikely to have other rights thru some general veto or otherwise. (2) 6.5.2 power to reject budget to strategy, interferes with normal operation and so needs to be carefully articulated.

Stephanie/Steven of Adler. Feel members would be the more viable structure over the budget or very specific decisions. Corporate purpose, great care to get it right, and can be used as an accountability mechanisms (less certain than Holly of this) asking if the corporation is following and if not bring in the attorney general.

Powers under 6.3 6.4 6.5. 6.5, could be held for members of designators,

Designators standing to sue less clear that members.

A model of members of designators. Is there a critical difference between the two? Designator path is similar to what ICANN has, because not involving the big change of creating ICANN as a member org. Changes to the bylaws to clarify the designator role. Members, may be clearer to provide some of be veto and approval rights, fairly certain can do on the model.

The least change model is likely to be one the community generally will accept.

Templates on Friday will provide further guidance. How to take legal advice is important now. Useful to receive an assessment of the two options, and why going down designator or membership will not allow some powers to be delivered.

5. Agree agenda for 10 & 13 April calls

Action: Jordan to put out a draft to the group.

6. AoB

None.

END

Action Items

Action: Matthew to lead the team and produce a mapping table, Avri and Fiona volunteering. target Friday or Monday (13)

Robin Gross [GNSO - NCSG]: (16:10) Based on our legal sub-team call with the indpendent lawyers this morning, the lawyers are going to suggest we look more closely at two models - either a membership model or a designator model. The independent lawyers will give the entire CCWG a presentation at our meeting on Tuesday what mechanisms they suggest we focus on (and what we can leave on the table).

Matthew Shears: (16:17) The comitments made by ICANN in the AoC would be taken in whole or part into the bylaws

Matthew Shears: (16:20) I think this is a key issue - is the AoC going to go away once we are comfortable that the appropriate and relevant parts have been incporated into the bylaws - I would think yes

Jordan Carter: (16:20) lawyers - please feel welcome to join the speaking list if you have things to add. We are open to that as far as I am concerned.

Michael Clark (Sidley Austin): (16:20) Happy to respond about the nature of bylaws. Were we to have members of ICANN, the bylaws is generally viewed as a contract between the organizaiton and its members, enforceable by members.

Jordan Carter: (16:21) (or to add in the chat, like Michael just has)

Keith Drazek: (16:22) Thanks Michael, excellent clarification.

FIONA ASONGA (ASO): (16:22) +1 Steve DelBianco

Jordan Carter: (16:22) So what we are talking about is an audit

Jordan Carter: (16:22) A quick audit so everyone can see where these things send up

Jordan Carter: (16:22) end up

Matthew Shears: (16:23) I think thats right Jordan

Steve DelBianco [GNSO - CSG]: (16:23) agreed. we do not recommend canceling the AoC. We just ensure that there's no risk to Community Accountability IF the AoC were terminated

Matthew Shears: (16:24) @ Avri - thanks

FIONA ASONGA (ASO): (16:24) Thanks Avri and yes Steve D

Avri Doria (atrt, participant): (16:24) one things we have to deal with is the discreancy on how we do do tose reviews.

Avri Doria (atrt, participant): (16:25) AOC is specific of how they are setup , and their schedules.

Steve DelBianco [GNSO - CSG]: (16:25) AoC has committments from USG and from ICANN. We are preserving only the ICANN commitments

Matthew Shears: (16:25) Some of the AoC are commitmetns by the DoC/USG, others by ICANN - mapping them and wherre those that ICANN has committed to will help understand where they are being addressed

FIONA ASONGA (ASO): (16:26) The USG part will contribute to community empowerment

Avri Doria (atrt, participant): (16:26) for example we will not include the NTIA fixed seat on the ATRT, i assume.

Keith Drazek: (16:26) Our work should give NTIA and ICANN the ability to terminate the AoC and associated unique relationship by accomodating all the critical provisions into the bylaws.

Josh Hofheimer (Sidley): (16:26) If the AoC comes in to the bylaws, of course, we will want to review the language carefully to make sure that the language is clear in its intent. To Michael's point, if the mechanism that is proferred for improving accountability includes having members of ICANN, those members can take action against perceived breaches of the Bylaws.

Steve DelBianco [GNSO - CSG]: (16:30) This table would be at 6.6 of our document, before the discussion of Reviews

Robin Gross [GNSO - NCSG]: (16:31) can we get a link to the paper or see the paper here?

Berry Cobb: (16:31) getting it....

Berry Cobb: (16:33) Sorry for delay, I had one with am's comments ready.

Berry Cobb: (16:34) Sam's

Berry Cobb: (16:34) bad typo

Robin Gross [GNSO - NCSG]: (16:36) The power to recall the entire board says there will be directed voting. That was not agreed to and others have expressed that they don't want directed voting.

Robin Gross [GNSO - NCSG]: (16:38) I disagreed and others did too.

Avri Doria (atrt, participant): (16:39) under the section on recalling individual drectors, a small edit to account for the fact that At-Large (ALAC) (s)elects one Board members and thus would need the power to recall.

Avri Doria (atrt, participant): (16:39) i would think he power to bind the vote is a bottom-up poeer of the AC/SOs

Keith Drazek: (16:39) Agreed Avri

arasteh: (16:40) WHAT DO YOU MEAN BY DIRECTED VOTING'?

Robin Gross [GNSO - NCSG]: (16:40) I hear Avri

Robin Gross [GNSO - NCSG]: (16:40) yes

David McAuley (Legal Sub-Team): (16:40) yes can hear

Robin Gross [GNSO - NCSG]: (16:40) but Avri and Jordan are on top of each other

Berry Cobb: (16:40) nor do i

Matthew Shears: (16:40) I can hear Avri

Keith Drazek: (16:40) Directed voting means that each SO or AC would tell its own member/representative how to vote.

Keith Drazek: (16:42) How directed voting is determined is a question for each SO/AC, but we sholdn't have individuals freelancing without guidance/direction from their group.

Avri Doria (atrt, participant): (16:43) i was not arguing it impossible, just inappopriate

Edward Morris: (16:44) @Keith. One would think that one who freelanced on such important issues would no longer be charged with representing their group.

Avri Doria (atrt, participant): (16:44) i think a set of processes that still honor the bottom-up philosophy.

Avri Doria (atrt, participant): (16:45) Sometime a population of a group may be split and force their represntagive to do the right thing. also binding means that any time there is compromise decsion, they all need to go back to their captials for a decsion.

Steve DelBianco [GNSO - CSG]: (16:46) I have a comment on Sec 6.5.7 Other Powers, related to a general Community Veto. Can do it now or later

Avri Doria (atrt, participant): (16:47) i think robin pointed to the crux of the issue on Community Veto. is is bound to several issues like budget and bylaws, or is it an open power

Steve DelBianco [GNSO - CSG]: (16:49) Budget and Bylaws Vetto powers are explicitly listed. When i used the term 'General Community Veto" was referring to veto of a board decision that fell within a list of specific issues -- other than budget and bylaws change.

Robin Gross [GNSO - NCSG]: (16:50) ok - so it is much broader than the veto that we've proposed. Thanks for that clarification, Steve.

Steve DelBianco [GNSO - CSG]: (16:52) @Robin -- in Singapore on Saturday, you mentioned there would be a list of limited issues. But I didn't see the list of limited issues until Istanbul Sunday. In the interim, the ST team mentioned a general community veto as a potential answer to several stress tests.

Robin Gross [GNSO - NCSG]: (16:53) thanks very much for the clarification, Steve. That's a big relief to hear it is something else that has been struck.

Robin Gross [GNSO - NCSG]: (17:06) I don't know what is meant in the Notes to the right by "And the other vetos allow the community to deliver those powers."

Jordan Carter: (17:07) thenotes should read "The powers the CCWG is recommending deal with all those that were proposed for the community veto" or similar

Steve DelBianco [GNSO - CSG]: (17:08) @Josh -- the Board's fiduciary duties to the Corporation may not always coincide with the board's duties to the Community (Core Values). That's why we (the community) need powers to balance/challenge the boarrd's decisions to protect the corporations interests.

Stephanie Petit and Steven Chiodini: (17:08) +1 Josh, power to second guess every board decision not healthy.

Steve DelBianco [GNSO - CSG]: (17:10) @Holly -- but wait, there are times those interests are NOT consistent. To protect the corporation ,the board might avoid a legal confrontation with a government , applicant, or contract party. But the community may believe the legal battle is worth fighting

Keith Drazek: (17:11) +1 Steve

Robin Gross [GNSO - NCSG]: (17:12) If the board has a chance to reject the community's choice, then they can still meet their fiduciary duty by voting against the community choice.

Holly Gregory: (17:12) I am suggesting that we redefine the corporate purpose to clarify that community interests are paramount such that the interests of the board and community are aligned

Matthew Shears: (17:12) I think that this statemet needs elaboration/clarity: "The current organization of ICANN may accomplish WP1's goals, but some new mechanisms may disrupt this."

Stephanie Petit and Steven Chiodini: (17:13) +1 Holly, and ultimately if the community is not satisfied with a particular director or directors, ultimately its remedy is their removal

Robin Gross [GNSO - NCSG]: (17:13) we are not satisfied with simply voting for board members. We are building community powers.

Holly Gregory: (17:13) the corporate purpose stated in the articles is the polestar by which the board governs a not for profit and if the current purpose does not adequately address community interests we should address

Athina Fragkouli (ASO): (17:14) I agree with Jordan's point

Stephanie Petit and Steven Chiodini: (17:14) Understood, Robin. And many of those are available too.

Steve DelBianco [GNSO - CSG]: (17:15) It would be a mistake for our legal advisors to assume that board removal is a useful tool to keep the board accountable to the communbity

Robin Gross [GNSO - NCSG]: (17:15) +1 Steve

Holly Gregory: (17:16) Steve, please explain

Holly Gregory: (17:16) and if not a useful tool, why have it?

Michael Clark (Sidley Austin): (17:17) So is what is intended a "line item veto" of particular components of budgets or strategies?

Steve DelBianco [GNSO - CSG]: (17:17) @Holly -- board removal is highly disruptive and requires an extraordinary level of agreement among ocmmunity members. It would therefore be unlikely to be used.

Jordan Carter: (17:18) Michael: no, not a line item veto. All up or all back.

Robin Gross [GNSO - NCSG]: (17:18) Michael, please look at the templates for the specifics on the veto proposal

Matthew Shears: (17:19) we have to have a very clear escalation path to board removal - if we have to reove the board as a whole then things have gone terribly wrong in our accountablity efforts

Holly Gregory: (17:20) the threat of removal of entire board should help focus directors on community interests. in addition, the ability og district groups to remove their designated directors should also help focus directors -- and that removal is far less extreme. I am b

Izumi Okutani (ASO): (17:20) whether we should agree on a single solution or put alternative for public comment...Having a single option would be desisrable ofcourse but on points where we have different opinions and don't have an agreement provide options

Holly Gregory: (17:21) I am not arguing against other community powers. my key point is that if ICANN's current articles do not adequately state the corporate purpose in terms of community interests we should address.

Malcolm Hutty: (17:25) Kabouss, I take your point on square brackets. However, all I meant was that the current text indicates specific points where there is lack of consensus using the convention of bold&underline, and that the convention of square brackets may be more familiar for this purpose

Michael Clark (Sidley Austin): (17:26) I think Stephanie and Steve are on from Adler and Colvin

Matthew Shears: (17:26) should we not be seeking to understand which community empowerment model is best suited to deliver the mechanism that allows the community to exercise the powers that we are discussing?

Michael Clark (Sidley Austin): (17:27) Unforunately, I have a hard stop at half past the hour, so am leaving shortly to teach a class.

Malcolm Hutty: (17:33) Holly: Review of corporate purpose is being looked at in WP2, but there is a real fear that anything more than minor tidying changes would take a long time to agree and would not be possible to reach consensus in the timeframe planned for this purpose. Some even say major revision is outside scope for "improving accountability"

Greg Shatan: (17:33) Occam's razor, anyone?

Malcolm Hutty: (17:34) Take Greg as an example :-)

Vrikson Acosta: (17:36) Sorry being late. Imixed up the time of this meeting, including time difference from GMT time

Robin Gross [GNSO - NCSG]: (17:37) We have a form of a designator model now. But our designators (SO/AC) don't have power accept appoint board members. I like the proposal to simply empower the designators (the SO/ACs).

Holly Gregory: (17:37) thanks Malcolm. that is very helpful.

Stephanie Petit and Steven Chiodini: (17:38) We agree with what Josh is saying.

Jordan Carter: (17:38) We have the list of powers now. So this is the "comback time" - we need to propose to the communitty a mechanism that can deliver it.

Steve DelBianco [GNSO - CSG]: (17:42) "interfere with operations" is a false choice. the 'Operations" of iCANN are coordinating policy and enforcement.

David McAuley (Legal Sub-Team): (17:42) I sense from the memos that the membership model better enables all powers we seek and designator model relies on board removal only, which might be too high level to be fully useful for what we want to do

Jordan Carter: (17:42) If there are comments frm the lawyers on those powers that we didn't get in that discussion, it'd probably be helpful to have them shared, or/and in writing

Malcolm Hutty: (17:43) @holly, all that is a lively topic of discussion, and fwiw I agree with you that a close look at the mission/corporate purpose should be one of our main priorities, so don't take what I said as rejection. But even I must accept that this is not easy

David McAuley (Legal Sub-Team): (17:49) One thing the legal sub-team is looking at (as per today’s call) is to quickly request “holistic” advice (rather than series of questions) where we would ask to compare/contrast member vs designator models – we will nor drop questions, but simply focus on holistic

Jordan Carter: (17:50) Good, David. That's what we need.

Matthew Shears: (17:51) if we have designators why have they not been empowered to date and if they are empowered are we sure that the designator model can deliver the means through which the powers will be exercised

Stephanie Petit and Steven Chiodini: (17:51) Agree 100% Holly, on member versus designator pros and cons you have listed.

Robin Gross [GNSO - NCSG]: (17:51) Matt, it seems the bylaws didn't give them much power - not even the power to recall their designated board member.

Stephanie Petit and Steven Chiodini: (17:52) @Robin, there are powers in the law that may not have been listed explicitly in the bylaws.

Robin Gross [GNSO - NCSG]: (17:53) yes, that is what the ARIN memo pointed out. I thought it was very helpful. We need to empower our designators.

David McAuley (Legal Sub-Team): (17:53) it should be in short order, I am not on phone and have no microphone that is working

Josh Hofheimer (Sidley): (17:54) @Robin, the current bylaws probably do not fully and adequately define the role of the designators, at least not the way we are describing on the call today. They will need to be revised, even if it is only to clarify the designators powers and obligations.